SLAPPs, Speech, and Standing Up for Equality

If you were threatened with a costly defamation lawsuit, would that stop you from speaking out about issues that matter to you?

At CCLA, we believe that defamation law should not be allowed to discourage people from participating in democratic discussion and debate. That’s the message we brought to the Supreme Court of Canada on October 11, 2022, in the Hansman v Neufeld appeal. We are pleased to see that the Court’s majority decision agrees with the importance of protecting public debate and the free expression of ideas. The decision interprets and applies defamation law in a manner that appropriately balances the need to safeguard reputational interests with the need to promote and protect freedom of expression on matters of public interest.

The appeal stems from a debate in British Columbia about SOGI 123, a package of resources for teachers intended to introduce students to issues of sexual orientation and gender identity in age-appropriate ways. Barry Neufeld, an elected school board trustee from Chilliwack, published a post on Facebook that attacked SOGI 123 for promoting what he considers an inappropriate “gender ideology.” In turn, Glen Hansman – then serving as president of the BC Teachers’ Federation – spoke out in the media, denouncing the Facebook post. He argued that Neufeld’s words were discriminatory and would foster an unsafe learning environment for 2SLGBTQI+ students. Based on these public comments, Neufeld sued Hansman for defamation.

The appeal before the Supreme Court of Canada considered BC’s Protection of Public Participation Act, which in 2019 introduced changes to the law of civil procedure aimed at protecting open debate on matters of public interest. The law aims to screen out “strategic lawsuits against public participation” (a.k.a. SLAPPs) – lawsuits that may have little merit, but that have the effect of shutting down debate on matters of public importance. Despite the PPPA and similar laws in Ontario and Quebec, some Canadians find themselves dragged into lengthy, expensive legal battles due to their participation in public debates. The threat of a defamation lawsuit can often “chill” expression and discourage people from speaking out about important issues. In this case, Mr. Neufeld’s suit against Mr. Hansman was initially dismissed by the BC

Supreme Court, but this decision was reversed by the BC Court of Appeal. The Supreme Court, in a 6-1 decision, restored the BC Supreme Court’s ruling and dismissed Mr. Neufeld’s claim.

In our intervention CCLA focused on the defence of “fair comment,” a legal doctrine that protects our ability to express opinions – whether it’s leaving a negative Yelp review or criticizing politicians. Public debates can sometimes be heated, impolite, and even caustic. Yet we believe that, to quote the Supreme Court of Canada, “public controversy can be a rough trade, and the law needs to accommodate its requirements.” While the majority decision does not alter the defence of fair comment as we had proposed, it clearly and explicitly recognizes that allegations of racism, homophobia, and other forms of prejudice, are most properly characterized as comment, not fact. As a result, grounding a defamation claim in these types of allegations alone will likely result in a successful fair comment defence. In the circumstances of this case, it meant that the plaintiff’s claim ought to have been dismissed. The majority found that there was great public interest in protecting Mr. Hansman’s freedom of speech, noting that its subject matter, the form in which it was expressed, and the motivation behind it (to combat discriminatory and harmful expression to protect transgender youth in schools) are all deserving of significant protection.

As Hansman v Neufeld shows, protecting freedom of expression also promotes equality. It allows equity-seeking groups and their allies to call out issues, share their experiences, criticize people in positions of power, and build public support – without fear of the law being used against them. As Canadian courts have recognized, freedom of expression is a lynchpin that protects our ability to participate in democracy, express ourselves, and pursue the search for truth.

Many thanks to our creative and committed pro bono counsel in Hansman v Neufeld, Lillianne Cadieux-Shaw and Alexi Wood.

Read our factum here.